Kidnapping - Rape
Number of victims: 2
Date of murders:
August 21, 2002
Date of birth:
Victims profile: Maria Rangel and Roxana Capulin
Method of murder:
Location: Harris County, Texas, USA
Status: Sentenced to death on December 11, 2003
Sorto, Walter Alexander
(at the Offense)
Summary of incident
On May 31, 2002, in Harris County,
Texas, Sorto and co-defendants Cubas and Navarro kidnapped two
hispanic females, sexually assaulted them and shot them in the
head resulting in their deaths.
Edgardo Cubas, Eduardo Navarro
and Gender of Victim
In The Court
of Criminal Appeals of Texas
Walter Alexander Sorto,
The State of Texas
Appeal from Harris County
delivered the opinion of the
Court in which Keller, P.J., Price, Womack, Johnson, Keasler,
and Holcomb, JJ.,
joined. Meyers, J.,
Appellant was convicted in November 2003 of capital murder.
Pursuant to the jury's answers to the special issues during the
trial court sentenced appellant to death.
Direct appeal to this Court is automatic.
Appellant raises sixteen points of error. We will affirm.
Sufficiency of the Evidence
In his second point of error, appellant argues that the evidence
is legally insufficient to prove that he intended to kill the
victims. When evaluating the legal sufficiency of the evidence, we
view the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.
Appellant was indicted for intentionally and knowingly causing the
deaths of Maria Rangel and Roxana Capulin by shooting them with a
firearm during the same criminal transaction.
(6) The charge
authorized the jury to convict appellant on any of three theories
of capital murder: (1) as a principal; (2) as a party under
Section 7.02(a) of the Texas Penal Code;
(7) or (3) as a
conspirator under the law of parties in Section 7.02(b) of the
Texas Penal Code. Because the trial court's charge authorized the
jury to convict on alternative theories, the verdict of guilt will
be upheld if the evidence was sufficient on any one of the
A. The evidence.
evidence at trial showed that Maria Rangel and Roxana Capulin were
working at El Mirador restaurant on Canal Street in Houston on the
evening of May 31, 2002. Ms. Capulin's husband testified that
Roxana called him at about 10:00 p.m. to tell him that she was
closing the restaurant and would be coming home soon. The cook,
Gabriel Mello, testified that he left at about 10:15 p.m., and
that Ms. Rangel and Ms. Capulin stayed behind to close the
Limon testified that he drove by the restaurant at around 11:15
p.m. and saw two men and two women outside. One woman was putting
a chain around the door, and the other woman was standing nearby
talking to one of the men. The second man, whom Limon identified
at trial as appellant, was talking on a pay phone. Limon further
testified that he observed a "red truck" parked outside the
Roxana's husband became worried when she did not arrive home by
10:30 p.m., so he called the restaurant. When no one answered the
phone, he drove to the restaurant to look for her. As soon as he
arrived, he saw that Roxana's maroon Dodge Durango
(9) was gone, the
restaurant lights were off, and the restaurant door was chained
but unlocked. Maria Rangel's husband later arrived, and they
entered the restaurant and found no one inside.
Roxana's car was found on the morning of June 1, 2002. Emil
Havelka testified that he saw a Dodge Durango parked in the middle
of Joyner Street, near his office, at 7:00 a.m. When he saw two
bodies inside the car and a large pool of blood on the ground by
the back passenger door, he called the police.
police arrived and found the bodies of Roxana Capulin and Maria
Rangel inside the car. The car doors were unlocked and the keys
were in the ignition. The Durango had three rows of seats; Ms.
Rangel's body was in the middle row, and Ms. Capulin's body was in
the back row. Ms. Rangel was wearing an El Mirador apron, and she
had duct tape on her hands and wrists and over her eyes and mouth.
Ms. Capulin also had duct tape over her eyes and mouth. The
medical examiner testified that Ms. Rangel's death was caused by
two gunshot wounds to her head, and that Ms. Capulin died from a
single gunshot wound to her head.
Police recovered a bullet and three cartridge casings from inside
medical examiner also recovered bullet fragments from Ms.
Capulin's head during her autopsy. The firearms expert who
examined the ballistics evidence testified that all three bullets
could have been fired from the same 9-millimeter firearm.
Harris County Sheriff's Deputy Miguel Gonzalez testified that,
over two months later,
on August 20, 2002, he was contacted by a confidential informant
with information about the murders. Deputy Gonzalez and Detective
Alejandro Ortiz met with the informant and appellant at a Marriott
hotel room at about 7:30 p.m. that evening.
Gonzalez testified that appellant said he had information
regarding the women who were abducted from El Mirador restaurant,
and that he needed the $5,000 Crimestoppers reward money because
his wife was pregnant. Appellant stated that Edgardo Cubas and
a juvenile, had abducted and murdered the victims.
(11) He said that
Cubas and Navarro had invited him to go along with them that
night, but he declined their invitation and followed them instead.
He parked his car in a parking lot across the street from the
restaurant and saw Cubas and Navarro abduct the women. He then
followed them to a remote location and parked nearby, but he left
the scene after he heard gunshots.
At this point, Det. Ortiz thought appellant was a witness to the
double murder, so he asked appellant and the informant if they
would continue the interview at the Harris County Sheriff's
homicide division office. They agreed to do so, and appellant
drove himself and the informant to the office. When they arrived
at around 9:45 p.m., Det. Ortiz and a Detective Brown conducted a
videotaped interview with appellant. Appellant again stated that
he witnessed the abduction from across the street. He said that
Navarro stayed in Cubas's Honda Accord while Cubas talked to the
women outside the restaurant; then Cubas got into a Dodge Durango
with the women, and Navarro followed them as they drove away.
Appellant followed both cars to a second location and parked about
one hundred twenty feet away. Cubas and the women remained parked
in the Durango for about thirty minutes. One of the women got out
of the car and tried to run away, but Cubas caught her and put her
back inside the vehicle. Appellant saw that Cubas had a pistol and
a large roll of tape in his hands, and he watched as Cubas fired
three shots into the Durango. Appellant then left, and Navarro saw
him as he was driving away. Appellant later saw Cubas and Navarro
in a bar, and Cubas threatened to kill him and his family if he
told anyone what he had seen.
During the interview, Det. Ortiz asked appellant if he would agree
to give a saliva sample. After appellant consented to give a
saliva sample, he added that he, Cubas, and Navarro left the club
and returned to the scene, where Cubas forced him to have sex with
Ms. Rangel's body.
Ortiz testified that he took appellant into custody after he
learned of an outstanding warrant for appellant's arrest at
approximately 1:10 a.m. Appellant then agreed to show the
detective where Cubas and Navarro lived. They left the homicide
division office at 2:05 a.m. and returned at 3:10 a.m. At 7:30
a.m., appellant was taken before a magistrate, who gave him his
Appellant was then taken to the Houston Police Department homicide
he was interviewed by Officers Jesus Sosa and Heraclio Chavez. In
this videotaped statement, appellant told a very different version
of the events. He said that Cubas picked him up in his Honda
Accord at about 8:30 p.m, and they then picked up fourteen-year-old
Navarro. Appellant and Cubas went to a few bars while Navarro
waited in the car; then they went looking for a bar that would
admit Navarro. Cubas, who was in possession of a 9-millimeter
pistol, said that he wanted to commit a robbery because he needed
money to pay rent. They were driving on Canal Street when they saw
two women coming out of a restaurant. Cubas parked in a nearby
parking lot, got out of the car, and approached the women from
behind as they were walking toward the Durango. Cubas motioned for
appellant to come over to them, and Cubas made Roxana Capulin give
appellant the keys. Ms. Capulin sat in the back seat with Cubas,
Maria Rangel sat in the middle seat, and appellant drove the
vehicle. As appellant drove to an area near "Dixie and Wayside,"
Cubas placed tape over the eyes and mouths of the women and bound
Ms. Rangel's hands with tape. Cubas wanted to sexually assault
Roxana Capulin, so he told Ms. Rangel "to get down from the truck"
when they stopped. Ms. Rangel fell out of the car onto the ground.
Appellant also got out of the car, and Cubas stayed inside with
Roxana Capulin. When Ms. Rangel later got too close to the car,
Cubas pointed the gun at her and told her to take her clothes off.
He told appellant "to fuck her by force," and appellant "gave her
like 3 thrusts" and ejaculated. Appellant then "fixed . . . her
pants" and put her back inside the Durango, where Cubas was
forcing Ms. Capulin to perform oral sex on him. Appellant told
Cubas to let the women go. He drove the car a short distance, then
turned it off, left the key in the ignition, got out, and started
walking away. As he was walking to the Accord where Navarro was
waiting, he heard three shots coming from the direction of the
Durango. Cubas then came running toward him, and they got into the
Accord with Navarro and left. When appellant asked Cubas what
happened to the women, he said, "I killed them whores." Cubas said
he had taken money and jewelry from the women, and he showed
appellant a chain that belonged to one of them. Cubas dropped
appellant and Navarro off at the apartment complex where they both
lived at about 12:05 a.m.
Appellant's videotaped statements were not the only evidence of
his participation in the double murder. DNA evidence also tied
appellant to the offense. Appellant's DNA profile was consistent
with the DNA profile of sperm found on Rangel's clothing and in
her vagina. Cubas's DNA profile was consistent with the DNA
profile of sperm found on Capulin's panty hose and in her mouth.
State also presented evidence of appellant's involvement in the
extraneous murder of fifteen-year-old Esmeralda Alvarado on
January 18, 2002, four months before the charged murders. Ms.
Alvarado's boyfriend, Osiel Blanco, testified that she came over
to his house to watch television that evening, and that she went
outside to use a nearby pay phone at about 9:30 p.m. When Blanco
went outside to look for her about ten minutes later, she was gone.
Her body was found four days later. The medical examiner testified
that she died from a gunshot wound to the head. Appellant was
included as a possible contributor of the DNA obtained from sperm
found in Ms. Alvarado's anus. Cubas's DNA was consistent with the
DNA profile of sperm found in Ms. Alvarado's vagina.
Appellant admitted his involvement in Esmeralda Alvarado's murder
in a videotaped interview with Detectives Chavez and Ortiz.
Appellant stated that one night in January 2002, he and Cubas were
driving around in a truck belonging to Cubas's father. They passed
by a young girl talking on a pay phone, and Cubas said that he
wanted to have sex with her, so he turned the truck around and
went back to where she was standing. Cubas forced her at gunpoint
to get into the back seat of the truck, and appellant got into the
back seat with her. Cubas tied a rag over the girl's eyes and
drove them to a deserted area. Appellant stayed in the truck while
Cubas took the girl outside and raped her. When they returned to
the truck, appellant made her get into the back seat with him, and
he raped her. They initially planned to leave her at the scene,
but as they were leaving she yelled, "Hey, don't leave me here."
They let her back into the truck, and she asked them to drop her
off near her home. Cubas started to drive away, but then decided
to take her back to where they had raped her. They got out of the
truck and Cubas made her perform oral sex on him. Cubas then shot
her in the head, and he and appellant got into the truck and drove
B. Sufficiency of the evidence to establish Appellant's
intent to commit capital murder.
Applicant claims that he "specifically denied" any intent to kill
Roxana Capulin and Maria Rangel when he said in his statements
that he urged Cubas to let them go and that he was leaving when
Cubas shot them. However, the jury was free to take all of the
evidence into account and to believe or disbelieve any portion of
appellant's statements. Appellant, by his own admission, knew that
Cubas had a gun and that he planned to commit a robbery. At some
point after they left the restaurant with the women, appellant
knew that Cubas planned to sexually assault Ms. Capulin. Appellant
drove the vehicle from the restaurant and sexually assaulted Ms.
Rangel when they arrived at their destination. Four months prior
to the instant offense, appellant participated in the kidnapping
and sexual assault of Esmeralda Alvarado, who was ultimately shot
and killed by Cubas in front of appellant. The jury could have
inferred from the evidence that appellant likewise intended to
promote or assist in the murders of Ms. Capulin and Ms. Rangel.
After viewing the evidence in the light most favorable to the
prosecution, we conclude that a rational jury could have found
that the essential elements of the offense were proven beyond a
of error two is overruled.
In his first point of error, appellant asserts that the trial
court erroneously refused to instruct the jury on the lesser-included
offense of aggravated kidnapping. Appellant again relies on his
own statements to support his claim. He argues that a jury could
rationally find him guilty only of the lesser-included offense,
because in his statements he admitted only kidnapping and sexual
use a two-pronged test to determine whether a defendant is
entitled to an instruction on a lesser-included offense.
step in our analysis is to determine if the lesser offense is
included within the proof necessary to establish the offense
second step requires an evaluation of the evidence to determine
whether there is some evidence that would permit a jury rationally
to find that the defendant is guilty only of the lesser offense.
(15) In other
words, there must be some evidence from which a jury could
rationally acquit the defendant of the greater offense while
convicting him of the lesser-included offense.
evidence must establish the lesser-included offense as a valid,
rational alternative to the charged offense.
Appellant was charged with
murdering more than one person during the same criminal
offense of aggravated kidnapping is not
included within the proof necessary to establish the offense of
capital murder as charged in this case.
Therefore, point of error one is overruled.
his third point of error, appellant argues that the trial court
erred by instructing the jury on the parties theory of liability
because the law of parties was not pled in the indictment. He
alleges that the State's failure to indict him as a party to the
offense violated the Sixth Amendment and his constitutional right
to due process under
In re Winship,
(20) Apprendi v.
(21) and their
trial, appellant objected only to the "application of the 'attempts
to aid' portion of Section 7.02(a) of the Texas Penal Code,"
arguing that it was unconstitutional for a person who "acted but
failed to assist another" to be liable for the other person's
completed offense. Appellant's trial objection does not comport
with the issue he raises on appeal; thus, he has failed to
preserve his complaint for our review.
(22) In any event,
"[i]t is well-settled that the law of parties need not be pled in
(23) Point of
error three is overruled.
Vienna Convention Issues
In points of error four, five, and six appellant argues that his
consular notification rights under the Vienna Convention were
violated. In point of error four, he argues that his videotaped
statements to the police should have been suppressed because of a
Vienna Convention violation. In point of error five, he complains
that the trial court erred in failing to charge the jury under
his rights under the Vienna Convention. And, in point of error six,
he requests a new punishment trial as a remedy for a Vienna
Appellant's argument on all three points of error is that, because
he is a Salvadoran citizen, the police were required to notify him
without delay that he had a right to seek assistance from the
Salvadoran consulate and that the police were required to inform
the Salvadoran consulate without delay of his detention so that it
could provide consular assistance. He complains that the police
failed to provide such notice "without delay."
State argues that: (1) appellant lacks standing to enforce the
provisions of the Vienna Convention in a state criminal proceeding;
(2) the record does not affirmatively show that he was not
notified of his right to consult his consulate; (3) his consulate
was, in fact, timely notified of his detention; and (4) there was
no causal connection between the purported treaty violation and
the acquisition of his custodial videotaped statements.
A. The Vienna Convention
The Vienna Convention on Consular Relations
(25) is a treaty
which protects the rights of United States citizens abroad and
foreign nationals in the United States.
(26) The treaty
promotes the effective delivery of consular services in foreign
countries, including access to consular assistance when a citizen
of one country is arrested, committed to prison or custody pending
trial, or detained in any other manner in another country. In its
preamble, the treaty states that "the purpose of such privileges
and immunities is not to benefit individuals but to ensure the
efficient performance of functions by consular posts on behalf of
their respective States[.]"
ensure that no signatory nation denies consular access and
assistance to another country's citizens traveling or residing in
a foreign country, Article 36 of the Vienna Convention provides
consular officials shall be free to communicate with nationals of
the sending State and to have access to them. Nationals of the
sending State shall have the same freedom with respect to
communication with and access to consular officials of the sending
if he so requests, the competent authorities of the receiving
State shall, without delay, inform the consular post of the
sending State if, within its consular district, a national of the
State is arrested or committed to prison or to custody pending
trial or is detained in any other manner. Any communication
addressed to the consular post by the person arrested, in prison,
custody or detention shall also be forwarded by the said
authorities without delay. The said authorities shall inform the
person concerned without delay of his rights under this sub-paragraph;
consular officials shall have the right to visit a national of the
sending State who is in prison, custody or detention, to converse
and correspond with him, and to arrange for his legal
representation. They shall also have the right to visit any
national of the sending State who is in prison, custody or
detention in their district in pursuance of a judgment.
Nevertheless, consular officers shall refrain from taking action
on behalf of a national who is in prison, custody or detention if
he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be
exercised in conformity with the laws and regulations of the
receiving State, subject to the proviso, however, that the said
laws and regulations must enable full effect to be given to the
purposes for which the rights accorded under this Article are
provisions of Article 36 have also been implemented in various
federal regulations which apply to federal authorities in federal
However, neither treaties nor federal regulations necessarily
confer judicially enforceable rights on private persons in a state
criminal or civil proceeding.
normal circumstances, "[i]nternational agreements, even those
directly benefitting private persons, generally do not create
private rights or provide for a private cause of action in
treaty violations have traditionally been resolved by "international
negotiations and reclamations," the Supreme Court has stated that
"[i]t is obvious that with all this the judicial courts have
nothing to do and can give no redress."
however, a treaty may explicitly confer judicially enforceable
rights to persons of one nation residing in another, such as
treaties dealing with property rights asserted by a citizen in one
nation claiming property by descent or inheritance in another
(32) These latter,
"privately enforceable," treaty provisions are in the same
category as congressional statutes under the Supremacy Clause.
During the past decade innumerable state and federal courts have
been asked to decide whether Article 36 of the Vienna Convention
confers individual rights which may be judicially enforced in
criminal or civil proceedings.
(34) There is no
general consensus on this question. This Court has previously held
that the Vienna Convention does not create the type of personal
rights the violation of which can be remedied in Texas criminal
courts by the suppression of evidence under article 38.23.
The United States Court of Appeals for the Fifth Circuit has
recently reiterated the position of many American jurisdictions in
concluding that "the Vienna Convention does not confer
individually enforceable rights."
argues that our prior holding should be reconsidered in light of
the more recent International Court of Justice (ICJ) decisions in
Federal Republic of Germany v. United States (LaGrand),
Mexico v. United States (Avena).
(38) In these two
cases, the ICJ interpreted Article 36 of the Vienna Convention as
giving detained foreign nationals individual rights that the
foreign national's home country could invoke in a proceeding
before the ICJ.
The issues of whether American state and federal courts are bound
by the ICJ decisions in
Avena or whether Article 36 confers personal rights under the
federal constitution may be definitively resolved only by the
United States Supreme Court.
Breard v. Greene,
Supreme Court noted in dicta that Article 36 "arguably confers on
an individual the right to consular assistance following arrest[,]"
(42) but that
Court has not spoken on these issues since the ICJ decisions were
issued. In any event, we need not resolve those issues in this
case because, even assuming that American state and federal courts
are bound by
Avena or that Article 36 does confer personal rights,
appellant has not shown: (1) that any of the rights he claims
under the Vienna Convention were violated; or (2) that any
purported treaty violation either caused him to do anything he
would not otherwise have done or affected the fairness of his
trial in any way.
B. Pertinent facts
noted above, appellant and a confidential informant voluntarily
contacted the police on August 20th,
stating that they wished to offer information about the murders of
Roxana Capulin and Maria Rangel. According to Detective Ortiz,
they did so because they were interested in the reward money. Det.
Ortiz and Deputy Gonzalez met with the two men in a Marriott Hotel
room that evening thinking that appellant simply had information
about the double murder. When Det. Ortiz asked him to come to the
homicide division office to continue the interview, now as a
witness, appellant freely and voluntarily did so. He drove his own
car and was accompanied only by the confidential informant. He
freely and voluntarily continued to speak to the officers, all of
whom spoke fluent Spanish with him, throughout the evening hours
of August 20th.
Appellant, who eventually told the officers that he was born in El
that he came to America when he was eighteen, had lived in the
United States for seven years, and had worked in a chemical plant.
He said that he did not read or write much English or Spanish and
that he had been convicted of carrying a weapon in 1999. He told
the officers when they first got to the police station that he was
on probation for aggravated robbery.
present record contains the statutory warnings appellant received
when charged with that aggravated robbery. They show that he had
been informed of his right, in both English and Spanish, to notify
the Salvadoran consulate and seek its assistance but that he
explicitly waived his right to do so.
Det. Ortiz asked appellant for an oral swab at 10:48 p.m. on
appellant began to speak of himself as being less a mere witness
to a double murder and more a reluctant party to that crime. Only
then did Det. Ortiz begin to be suspicious, and he gave appellant
Miranda warnings in Spanish. At about 1:00 a.m. on August 21st,
Det. Ortiz discovered that appellant had an outstanding arrest
warrant on a motion to adjudicate stemming from his aggravated
robbery probation. It was then that Det. Ortiz considered
appellant in custody on that open arrest warrant.
7:30 a.m. on August 21st,
appellant was taken to a magistrate and given his statutory
warnings in Spanish through an interpreter. He told the magistrate
that he understood those warnings. Later that morning he was again
Miranda warnings and was told that he was under suspicion
concerning three murders-the murders of Roxana Capulin and Maria
Rangel, and the earlier murder of Esmeralda Alvarado.
According to every officer who testified, appellant was repeatedly
Miranda warnings in Spanish, and he repeatedly stated that he
understood all of his legal rights and voluntarily agreed to waive
them. At no point did he request to end the interviews, invoke his
right to silence, request the assistance of an attorney, or
request to speak to anyone else.
(44) At no point
did he request that he be allowed to contact the Salvadoran
consulate or request that the officers contact the consulate.
Appellant finished his fifth videotaped statement late on the
evening of August 21st.
The next day, August 22nd,
he was charged with the capital murders of Ms. Capulin and Ms.
Rangel, and, at 5:59 p.m. that afternoon, Officer Rodriguez
notified the Salvadoran consulate by fax that appellant had been
detained on capital murder charges. This notification, as well as
a news release on the double murder,
sent approximately forty hours after Det. Ortiz considered
appellant detained in custody on the unrelated probation
revocation arrest warrant.
is nothing in the trial record indicating that the Salvadoran
consulate took any action as a result of this notification.
Midtrial, the defense sought a continuance to obtain testimony
from a Salvadoran consular official concerning consular affairs,
but, according to defense counsel, this attempt was unsuccessful:
had gone through the El Salvadorian consulate and embassy both by
letter, fax, and phone call, by myself, my co-counsel, and our
investigator to attempt to enlist one of their consular officers
to come down and testify. Unfortunately, diplomatic personnel are
immune from process in Texas; and, of course, there is no U.S.
[sic?] consulate officer here in Houston.
the record indicates that when appellant's attorneys and
investigator sought assistance from the Salvadoran consulate, they
were rebuffed. There is no evidence in the record as to what
assistance the Salvadoran consulate might have provided had the
police notified the consulate sooner than they did.
C. The consulate was notified of appellant's detention "without
Article 36 of the Vienna Convention requires that "the competent
authorities of the receiving State shall, without delay, inform
the consular post of the sending State" when a citizen of that
sending State is arrested or otherwise detained if the citizen so
requests. The authorities "shall inform the person concerned
without delay of his rights" under Article 36. In the present
case, there is no evidence that the police informed appellant of
this right to request consular notification, but there is
undisputed evidence that the police notified the Salvadoran
consulate of appellant's arrest and detention nevertheless.
Appellant cannot complain that the police erred by failing to tell
him that he could request them to notify the consulate of his
detention if they notified the consulate even without his request.
Appellant claims that he wanted the consulate notified. The
consulate was notified. There is no basis for complaint here.
The only issue, then, is whether the police notified the
Salvadoran consulate "without delay." Article 36 does not define
the phrase "without delay,"
(45) nor does
appellant refer us to any specific treaty document, historical
analysis, or legal precedent which defines that term's meaning. So
what does "without delay" mean in the context of Article 36?
Although arguably we are not bound by the decisions of the ICJ
unless and until the United States Supreme Court decrees that
Texas courts must follow ICJ decisions as the supreme law of this
(46) we are not
forbidden from consulting those decisions.
Avena, the Mexican Government argued that the term "without
delay" should be interpreted to mean "unqualified immediacy" and
"prior to any interrogation of the foreign detainee." The ICJ
rejected Mexico's position, noting that, under this view,
would follow that in any case in which a foreign national was
interrogated before being informed of his rights under Article 36,
ipso facto be a breach of that Article, however rapidly after
the interrogation the information was given to the foreign
Indeed, we are unable to find any language within the Vienna
Convention that demonstrates that the signatories agreed that each
nation's authorities were required to advise a foreign national of
his right to contact his consulate before any police questioning
could begin or proceed. In fact, we are not aware of any laws or
judicial precedents in any of the signatory nations that include
such a requirement. Nor is there a treaty or other legal
requirement that the police must stop their interrogation even if
a foreign national requests consular assistance.
Avena Court, in addressing the meaning of the term "without
delay," noted that the purpose of the Convention was "for consular
officials to be free to communicate with nationals of the sending
State, to have access to them, to visit and speak with them and to
arrange for their legal representation."
(50) According to
not envisaged, either in Article 36, paragraph 1, or elsewhere in
the Convention, that consular functions entail a consular officer
himself or herself acting as the legal representative or more
directly engaging in the criminal justice process . . . . Thus,
neither the terms of the Convention as normally understood, nor
its object and purpose, suggest that "without delay" is to be
understood as "immediately upon arrest and before interrogation."
Avena Court noted that, during the diplomatic conference
discussions leading up to the final treaty draft, the Commission
had used the phrase "without undue delay."
(52) No delegate
proposed using the word "immediately."
proposed adding the phrase "but at latest within one month."
(54) The United
Kingdom proposed substituting the term "promptly" or "no later
than 48 hours" after detention.
(55) According to
the ICJ, the delegates could not agree on any specific time period,
but they did agree on dropping the word "undue."
(56) Thus, the
final treaty draft intentionally contains the phrase "without
delay," presumably to permit flexibility. The ICJ also stated that,
during these Conference debates, no delegate "made any connection
[of the phrase "without delay"] with the issue of interrogation."
Avena court concluded that the Article 36 notification rights
"cannot be interpreted to signify that the provision of such
information must necessarily precede any interrogation, so that
the commencement of interrogation before the information is given
would be a breach of Article 36."
We turn to sources closer to home: How does the United States
Department of State interpret the phrase "without delay" in
Article 36, both as that article applies to Americans detained in
a foreign country and foreigners detained in the United States?
The Consular Notification and Access booklet states that a foreign
national should be notified "without delay" of his right to
should be no deliberate delay, and notification should occur as
soon as reasonably possible under the circumstances. Once foreign
nationality is known, advising the national of the right to
consular notification should follow promptly.
Notification to the consulate should also occur "without delay"
once the foreign national has requested that it be made.
Department of State would normally expect notification to consular
officials to have been made within 24 hours, and certainly within
72 hours. On the other hand, the Department does not normally
consider notification of arrests and detentions to be required
outside of a consulate's regular working hours. In some cases,
however, it will be possible and convenient to leave a message on
an answering machine at the consulate or to send a fax even though
the consulate is closed.
The booklet goes on to state its guiding principle that American
authorities "should permit a consular officer the same access to a
foreign national that you would want an American consular officer
to have to an American citizen in a similar situation in a foreign
(62) The State
Department tells its overseas consular officials to lodge a
diplomatic protest if detaining authorities in a foreign country
do not notify the consulate within 72 hours of an American
(63) At least two
other American courts have stated that consular notification made
within one to three days of arrest or detention is made "without
Turning to Texas, our state criminal procedure laws have used the
phrase "without delay" or "without unnecessary delay" in many
when an arrestee is entitled to be taken before a magistrate.
Article 15.17 of the Code of Criminal Procedure states that "the
person making the arrest or the person having custody of the
person arrested shall without unnecessary delay, but not later
than 48 hours after the person is arrested, take the person
arrested or have him taken before some magistrate of the county
where the accused was arrested. . . ."
(66) The purpose
of this provision is to comply with constitutional and statutory
requirements that an accused person be promptly and fully informed
of the accusation against him, as well as his legal rights,
Miranda rights and his right to reasonable bail.
requirement is similar to the Fourth Amendment requirement that a
person arrested without warrant be given a "prompt" judicial
determination of probable cause to permit further detention. In
County of Riverside v.
(68) the Supreme
Court held that a jurisdiction that provides for such probable
cause hearings within 48 hours is sufficient to survive "systemic
challenges" to its system.
After canvassing (1) the words of the Vienna Convention itself;
(2) the interpretation of the phrase "without delay" by the ICJ in
Avena case; (3) the meaning that the State Department has
ascribed to that term both in application to Americans who are
detained abroad and foreigners detained in the United States; (4)
other American courts that have considered this wording; and (5)
use of the phrase "without delay" in Texas law, we conclude that
Officer Rodriguez, in faxing the required notification within 48
hours of appellant's arrest on the probation revocation warrant,
notified the Salvadoran consulate "without delay." We hold that
Texas authorities complied with their obligations under Article 36
of the Vienna Convention.
Therefore, the trial court did not err in refusing to suppress
appellant's videotaped statements, in declining to give any
article 38.23 jury instruction concerning the Vienna Convention,
or in refusing to reform appellant's death sentence to a sentence
of life imprisonment.
D. No causal connection or prejudice shown.
Finally, even assuming that the Vienna Convention was violated,
and even assuming that such violations may be remedied in an
American criminal proceeding,
has not shown any causal connection between the purported failure
to inform him of his right to consult his consul or with any
purported "tardy" notification of the El Salvadoran consulate and
either the acquisition of his statements or the fairness of his
only testimony that could arguably support appellant's position
that if he had a chance to speak with someone who would have
explained his rights, he would not have continued speaking with
is his testimony during the hearing on the motion to suppress.
There, he stated that he did not really understand the American
legal system or the consequences of waiving his legal rights
because he did not have these same rights in El Salvador. However,
the evidence also shows that it was appellant who approached the
police with his story about being the eyewitness to a double
murder; he initiated the contact with the legal system. Further,
appellant was not a novice in the American legal system. He had
two prior criminal cases; during one of those prior proceedings,
he explicitly acknowledged that he knew he had a right to consular
assistance, and he explicitly waived that right in writing.
Throughout August 20th
he was repeatedly given his
Miranda warnings by both Spanish-speaking police officers and
by a neutral magistrate through a Spanish-speaking interpreter. On
each and every occasion he explicitly said that he understood his
legal rights and wished to waive them.
Showing a causal connection or prejudice under these circumstances
is nigh impossible. As one federal court stated,
Prejudice has never been-nor could reasonably be-found in a case
where a foreign national was given, understood, and waived his or
Miranda rights. Courts have uniformly found that no prejudice
can exist in that situation, because the advice a consular
official would give would simply augment the content of
Miranda, which the foreign national has already waived.
Finally, there is no evidence in the record that the Salvadoran
consulate regularly provides any assistance at all to its foreign
nationals detained in Houston.
(74) Indeed, the
evidence indicates the opposite. The defense team was unable to
either persuade or subpoena a Salvadoran consular official to
appear at trial, and it indicated that there is no consular
official based in Houston. In the present case, no showing of
prejudice whatsoever has been made. Appellant's assertions of
prejudice are entirely speculative and belied by the record
evidence and applicable precedent.
because appellant has failed to show that he was in any way
prejudiced by the alleged Vienna Convention violation, we reject
his claims. Appellant's fourth, fifth, and sixth points of error
Article 38.23 Instruction on Voluntariness of
In point of error seven, appellant claims that the trial court
erroneously refused his request for an Article 38.23 jury
instruction on the voluntariness of his statements. When the
evidence presented at trial raises a factual issue as to whether a
defendant had been warned of his rights and voluntarily waived
them prior to making a statement, he is entitled to an instruction
on the voluntariness of the confession.
argues that he raised a fact issue as to whether his statements
were legally obtained by presenting evidence that he lacked
education, he had "trouble with the language," and "[h]e was not a
native of this country and had no reason to understand the many
rights he was spoken to about."
As noted above, the
evidence at trial showed that appellant approached police with
information about the case and that he agreed to go from the hotel
to the Harris County Sheriff's homicide division office to provide
more details about what he had allegedly witnessed. He was taken
before a magistrate for his warnings shortly after he was arrested
by Det. Ortiz.
magistrate read the warnings to appellant in English, an
interpreter translated the warnings into Spanish, and appellant
indicated that he understood the warnings. Appellant was then
transported to the Houston Police Department homicide division
office, where he gave a statement to Officers Sosa and Chavez
regarding his participation in the murders of Maria Rangel and
Roxana Capulin. Prior to taking his statement, these officers
again read appellant his rights in compliance with Miranda
and Article 38.22. They read his rights in Spanish and appellant
indicated that he understood his rights.
later gave a statement to Officer Chavez and Det. Ortiz admitting
his involvement in Ms. Alvarado's murder. Before asking appellant
to make his statement, Officer Chavez again read appellant his
rights in Spanish, and appellant again indicated that he
understood his rights. Officer Chavez testified that appellant did
not seem to have any difficulty understanding him. The officers
further testified that they conducted the interviews in Spanish,
they neither threatened appellant nor promised him anything, and
they never denied him food, drink, or the opportunity to use the
Appellant failed to establish at trial that his education,
language, or nationality affected the voluntariness of his
statements. Thus, the trial court did not err in refusing his
request for an Article 38.23 instruction. Point of error seven is
The Punishment Charge
In points of error eight, nine, and ten, appellant challenges the
trial court's charge to the jury on punishment, citing
Apprendi v. New Jersey,
Ring v. Arizona,
(81) in support
of his argument.
point of error eight, he complains that the punishment charge on
future dangerousness failed to define the term "probability." In
point of error nine, appellant claims that the trial court should
have instructed the jury that the State bore the burden of proof
beyond a reasonable doubt on the mitigation issue. We have
previously addressed and rejected these issues.
(82) In point of
error ten, appellant asserts that the anti-parties special issue
violated the requirements of
Ring because it permitted him to receive the death penalty if
the jury found that he merely "anticipated that a human life would
be taken." This claim is also without merit, given our previous
Ring have no applicability to Article 37.071 in its current
(83) Points of
error eight, nine, and ten are overruled.
Evidentiary Hearing on Motion For New Trial
In point of error eleven, appellant argues that the trial court
erroneously denied him an evidentiary hearing on his motion for
new trial, in which he argued that the method and chemicals used
to administer the death penalty in Texas amounted to cruel and
unusual punishment in violation of the Eighth and Fourteenth
Amendments of the United States Constitution.
(84) "When an
accused presents a motion for new trial raising matters not
determinable from the record, which could entitle him to relief,
the trial judge abuses his discretion in failing to hold a hearing."
The effect of granting
a motion for new trial is to restore the case to its position
before the former trial.
A trial court cannot grant a new trial as to punishment only.
if appellant's underlying claim of cruel and unusual punishment
had been meritorious, that claim deals only with the punishment
stage. Therefore, a new trial on guilt or innocence would not have
been the appropriate vehicle by which to provide him relief. Thus,
the trial court did not abuse its discretion in failing to hold a
hearing on the motion for new trial in the instant case. Point of
error eleven is overruled.
United Nations Convention Against Torture
In points of error twelve, thirteen, and fourteen, appellant
argues that his death sentence violates the United Nations
Convention Against Torture, Articles 6 and 14 of the International
Covenant on Civil and Political Rights, and the Supremacy Clause
of the United States Constitution. Although these treaties
prohibit "torture or cruel, inhuman, or degrading punishment,"
Senate filed reservations to both treaties stating that this
language did not prohibit the United States from imposing capital
punishment consistent with the Constitution.
Points of error twelve, thirteen, and fourteen are overruled.
Admission of Extraneous Offense Evidence
In point of error fifteen, appellant challenges the trial court's
admission of the extraneous murder of Esmeralda Alvarado at the
guilt phase of the trial. Appellant argues that this evidence was
an inadmissible extraneous offense under Rule 404(b), and that it
was substantially more prejudicial than probative under Rule 403.
Evidence of other crimes, wrongs or acts is not admissible "to
prove the character of a person in order to show action in
conformity therewith," but it may be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
admissibility of evidence is within the discretion of the trial
court and will not be overturned absent an abuse of discretion.
Appellant's intent was a hotly contested issue at trial. Although
he admitted his participation in the kidnapping of Roxana Capulin
and Maria Rangel and the sexual assault of Maria, he denied any
intent to kill them. In his statement to police, he said that he
attempted to persuade Cubas not to kill them and that he walked
away from the Durango thinking that Cubas would leave them there
alive. Evidence of appellant's participation in Esmeralda
Alvarado's murder just four months earlier, however, served to
rebut his argument that he lacked the requisite intent to promote
or assist Cubas in the capital murder in the instant case.
Appellant saw Cubas shoot Ms. Alvarado after they had kidnapped
and sexually assaulted her. This evidence demonstrated that
appellant knew Cubas would also be likely to kill Ms. Capulin and
Ms. Rangel, and that he intended to promote or assist Cubas in
their murders. The trial court did not abuse its discretion in
admitting this evidence for the purpose of proving appellant's
intent or knowledge.
Although the evidence is admissible under Rule 404(b), it may
still be excluded under Rule 403 if the trial court determines
that its probative value is substantially outweighed by the danger
of unfair prejudice.
Appellant's intent was an essential disputed issue in the case.
Evidence of appellant's involvement in Ms. Alvarado's murder was
relevant to the jury's determination of whether appellant
anticipated or intended the murders of Ms. Capulin and Ms. Rangel.
Further, evidence of the Alvarado murder was not so prejudicial
that the jury would have been unable to limit its consideration of
the evidence to its proper purpose.
(92) In both
instances, it was, according to appellant, Cubas who did the
actual killing in exactly the same manner. There is nothing about
Ms. Alvarado's murder that is more grisly or gruesome than the
double murders at issue here. And certainly the testimony
concerning Ms. Alvarado's rape and shooting was much shorter and
less detailed than the testimony concerning the charged offense.
The extraneous evidence focused upon the single evidentiary fact
that the charged murders were an almost perfect "copycat" of the
earlier one. The jury was entitled to use this "copycat" evidence
in deciding whether appellant knew that Cubas intended to kill the
two women, that appellant intended that Cubas kill the two women
or anticipated that he would do so, and that appellant assisted
him in that endeavor. The probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice, and
the trial court did not abuse its discretion in admitting it over
appellant's Rule 403 objection. Point of error fifteen is
Finally, in point of error sixteen, appellant argues that "[i]t
was error for the trial court to refuse to grant a charge at
sentencing on the effect of a single juror's 'No' vote to the
future dangerousness question." He contends that, as a result, he
was denied due process and deprived of his right to have "a fully
informed jury and individualized sentencing."
have repeatedly upheld the constitutionality of Article 37.071,
Section 2(a)(1), which prohibits informing jurors of the effects
of their failure to agree on the special issues.
Appellant attempts to distinguish our precedent by arguing that
there is no "statutory prohibition" against informing the jury of
the effect of a "no" vote on the future dangerousness question,
because the prohibition in Article 37.071, Section 2(a)(1) is
limited to "issues submitted under Subsection (c) or (e)." However,
Subsections (c) and (e) both expressly refer to Subsection (b),
which includes the future dangerousness special issue.
Appellant was not entitled to have the jurors informed of the
effect of their failure to agree on the future dangerousness
special issue. The trial court did not abuse its discretion in
refusing appellant's requested instruction. Point of error sixteen
affirm the judgment of the trial court.
1. Tex. Penal Code §
2. Tex. Code Crim. Proc.
art. 37.071, §§ 2(b) & (e). Unless otherwise indicated, all
references to Articles refer to the Texas Code of Criminal
Id. § 2(g).
Id. § 2(h).
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
6. Tex. Penal Code §
7. The charge authorized the
jury to convict appellant as a party if it found beyond a
reasonable doubt that "with the intent to promote or assist the
commission of the [capital murder] offense, if any, [he] solicited,
encouraged, directed, aided or attempted to aid Edgardo Cubas to
commit the [capital murder] offense . . . ."
Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex. Crim. App.
9. The Durango was a large
SUV, but the witnesses called it either a "car" or a "truck."
10. Deputy Gonzalez was
working a second job as a security officer for the Marriott Hotel.
11. Appellant referred to
Navarro by his nickname, "Lalo."
Jackson, 443 U.S. at 319.
Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App.
Id. at 672;
Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).
Moore, 969 S.W.2d at 8.
Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex. Crim. App.
Penal Code § 19.03(a)(7)(A).
See Jacob v. State, 892 S.W.2d 905, 907 (Tex. Crim. App.
1995) (stating that the determination of whether an offense is a
lesser included offense must be done on a case-by-case basis).
20. 397 U.S. 358 (1970).
21. 530 U.S. 466 (2000).
22. Tex. R. App. P. 33.1.
Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002)
Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997) (pre-Apprendi
see also United States v. Osborne, 286 F. Supp. 2d 891,
902-03 (E.D. Tenn. 2003) (rejecting defendant's claim that
Apprendi requires prosecution to allege law of parties in
indictment; "The Court is unaware of any authority supporting the
Apprendi required the government to allege aiding and
abetting" in indictment).
Code Crim. Proc. art. 38.23. Appellant does not point to any
evidence in the trial record that raises a factual dispute
concerning consular notification. His complaint appears to be one
of law: "Was the Vienna Convention violated, and, if so, what is
the appropriate remedy?"
Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T.
77, 595 U.N.T.S. 261 (ratified by the United States on Nov. 24,
See Vienna Convention, Preamble (noting that the signatories
recognize that "consular relations have been established between
peoples since ancient times" and serve "the maintenance of
international peace and security, and the promotion of friendly
relations among nations").
Id., Article 36.
See, e.g., 28 C.F.R.
("In every case in which a foreign national is arrested the
arresting officer shall inform the foreign national that his
consul will be advised of his arrest unless he does not wish such
notification to be given");
(requiring the arresting agent to inform the U.S. Attorney of the
arrest and of the arrestee's wishes regarding consular
(directing the U.S. Attorney to notify the appropriate consul in
accordance with the arrestee's wishes); 8 C.F.R. §
(requiring the INS to notify detained aliens of the right to
communicate with consul).
30. Restatement (Third) of
the Foreign Relations Law of the United States § 907 cmt. a, at
see Hamden v. Rumsfeld, ___ F.3d __, ___, 2005 U.S. App.
LEXIS 14315, *13-20 (D.C. Cir., July 15, 2005) (quoting
Restatement comment and holding that federal courts cannot enforce
the provisions of the Geneva Convention Relative to the Treatment
of Prisoners of War in an individual habeas corpus proceeding).
The Head Money Cases, 112 U.S. 580, 598 (1884) ("A
treaty is primarily a compact between independent nations. It
depends for the enforcement of its provisions on the interest and
the honor of the governments which are parties to it. If these
fail, its infraction becomes the subject of international
negotiations and reclamations, so far as the injured party chooses
to seek redress, which may in the end be enforced by actual war");
see also Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 442 (1989) (holding that the Geneva Convention on
the High Seas and the Pan American Maritime Neutrality Convention
"only set forth substantive rules of conduct and state that
compensation shall be paid for certain wrongs. They do not create
private rights of action") (footnote omitted);
United States v. Jimenez-Nava, 243 F.3d 192, 195 (5th
Cir. 2001) (noting that treaties "do not generally create rights
that are enforceable in the courts");
United States v. Li, 206 F.3d 56, 67 (1st
Cir. 2000) (Selya & Boudin, JJ., concurring) ("The background
presumption that treaties do not create privately enforceable
rights . . . [is an] extremely important principle. . . . It is
surpassingly difficult to accept the idea that, in most instances,
either the Executive Branch or the ratifying Senate imagined that
it was empowering federal courts to involve themselves in
enforcement on behalf of private parties who might be advantaged
or disadvantaged by particular readings of particular treaty
United States v. Gengler, 510 F.2d 62, 67 (2d Cir. 1975) (stating
that "even where a treaty provides certain benefits for nationals
of a particular state-such as fishing rights-it is traditionally
held that any rights arising out of such provisions are, under
international law, those of the states and . . . individual rights
are only derivative through states") (internal quotations omitted);
United States v. Rosenthal, 793 F.2d 1214, 1232 (11th
Cir. 1986) (even if United States violated its extradition treaty
with Colombia, defendant could not seek relief from that act
because "[u]nder international law it is the contracting foreign
government that has the right to complain about a violation").
See The Head Money Cases, 112 U.S. at 598.
34. Refer to the cases and
articles cited in note 36
Rocha v. State, 16 S.W.3d 1, 13-19 (Tex. Crim. App. 2000);
Hinojosa v. State, 4 S.W.3d 240, 252 (Tex. Crim. App. 1999) (rejecting
defendant's claim that his death sentence violated the United
Nations Charter and stating, "Generally, individuals do not have
standing to bring suit on an international treaty when sovereign
nations are not involved in the dispute").
Cardenas v. Dretke, 405 F.3d 244, 253 (5th
see also Medellin v. Dretke, 371 F.3d 270, 279 (5th
cert. dism'd, 545 U.S. ___ , 125 S.Ct. 2088 (2005) ("the
Vienna Convention, as interpreted by this Court in the past, does
not confer an individually enforceable right");
United States v. Jimenez-Nava,
243 F.3d at 198
(defendant's argument "fails to lead to an ineluctable conclusion
that Article 36 creates judicially enforceable rights of
consultation between a detained foreign national and his consular
office. Thus, the presumption against such rights ought to be
Some American courts have found that the Vienna Convention's
preamble indicates the drafters' intent not to provide an
individual right. As the preamble explicitly states, the Vienna
Convention does not intend to benefit individuals.
See United States v. Lombera-Camorlinga,
206 F.3d 882, 885 (9th Cir. 2000);
United States v. Li,
206 F.3d at 62;
United States v. Carrillo,
70 F. Supp. 2d 854, 859 (N.D. Ill. 1999);
United States v. Hongla-Yamche, 55 F. Supp. 2d 74, 77 (D.
American courts that have addressed the issue of consular
notification are split on whether Article 36 creates an individual
Breard v. Greene,
523 U.S. 371, 376 (1998)
(Vienna Convention "arguably confers" an individual right);
United States v. Briscoe,
41 V.I. 446, 69 F. Supp. 2d 738, 746-47 (D. V.I. 1999)
(Article 36 confers an individual right upon foreign nationals);
United States v. Hongla-Yamche,
55 F. Supp. 2d at 78
United States v. Alvarado-Torres,
45 F. Supp. 2d 986, 989 (S.D. Cal. 1999) (same),
United States v. Emuegbunam,
268 F.3d 377, 394 (6th Cir. 2001)
(concluding that "the Vienna Convention does not create a right
for a detained foreign national to consult with the diplomatic
representatives of his nation that the federal courts can enforce");
United States v. Bustos de la Pava, 268 F.3d 157, 165 (2d
Cir. 2001) ("Even
if we assume
that De La Pava had judicially enforceable rights under the Vienna
Convention-a position we do not adopt-the Government's failure to
comply with the consular-notification provision is not grounds for
dismissal of the indictment");
United States v. Tapia-Mendoza,
41 F. Supp. 2d 1250, 1253 (D. Utah 1999)
(expressing doubt that Article 36 confers individual rights, but
declining to reach issue because defendant's claim failed for
United States v. Singh, 59 M.J. 724, 725-26 (N-M. Ct. Crim.
App. 2004) (holding that the Vienna Convention does not confer
individual rights enforceable by military courts-martial);
State v. Navarro, 659 N.W.2d 487, 491 (Wis. App. 2003) ("we
are convinced that the Vienna Convention does not confer standing
on an individual foreign national to assert a violation of the
treaty in a domestic criminal case");
Cauthern v. State, 145 S.W.3d 571, 626 (Tenn. Crim. App.
2004) (concluding that, "for purposes of this post-conviction
proceeding, Article 36 of the Vienna Convention on Consular
Relations creates no individual rights that are privately
Kasi v. Virginia,
508 S.E.2d 57, 64 (Va. 1998)
(stating that the provisions of the Vienna Convention do not
create an individual right).
Federal Criminal Prosecutions and the Right to Consular
Notification Under Article 36 of the Vienna Convention, 105
W. Va. L. Rev. 179, 211 (Fall 2002) (concluding
that "the evolving federal criminal law makes clear, the remedy
for an Article 36 violation does not appear to include any action
that would affect the validity of the prosecution and conviction
of a defendant. Instead, the remedy is confined to diplomatic and
political interaction, or other action under international law,
between the United States and the country of the foreign national")
Mark J. Kadish,
Article 36 of the Vienna Convention on Consular Relations: A
Search for the Right to Consul, 18 Mich. J. Int'l L. 565 (Summer
1997) (arguing that the treaty drafters intended to create an
individual right of notification); Ann K. Wooster, Annotation,
Construction and Application of Vienna Convention on Consular
Relations (VCCR), Requiring That Foreign Consulate Be Notified
When One of its
Nationals Is Arrested,
A.L.R. Fed. 243 (2002)
courts have sidestepped the issue and concluded that remedies such
as the suppression of evidence or dismissal of an indictment are
not available even if the treaty does create individual rights.
See Commonwealth v. Diemer, 785 N.E.2d 1237, 1243-45 (Mass.
cert. denied, 540 U.S. 1150 (2004) (collecting cases and
joining those courts which have held that suppression of evidence
for a Vienna Convention violation is not an available remedy).
37. 2001 I.C.J. 104 (June
38. 2004 I.C.J. 128 (March
LaGrand, 2001 I.C.J. 104, ¶ 77;
Avena, 2004 I.C.J. 128, ¶ 40.
40. We note that Article
94(2) of the United Nations Charter suggests that ICJ decisions
are not privately enforceable in the courts of the member nations.
That article reads as follows: "If any party to a case fails to
perform the obligations incumbent upon it under a judgment
rendered by the Court, the other party may have recourse to the
Security Council, which may, if it deems necessary, make
recommendations or decide upon measures to be taken to give effect
to the judgment." 59 Stat. 1051. Further, Article 59 of the ICJ
statute, 59 Stat. 1055, incorporated into the United Nations
Charter, states that "[t]he decision of the [ICJ] has no binding
force except between the parties and in respect of that particular
case." Of course, the ICJ deals with disputes between nations (even
though they may address the rights and obligations of a nation vis
a vis private individuals), and only nations are parties to such
proceedings. Here, of course, neither appellant nor El Salvador
were parties to the
Avena case and therefore that decision is not binding in this
41. 523 U.S. 371 (1998).
Id. at 376.
43. The only witness who
testified that appellant said he was from El Salvador was Officer
Benavides who interviewed appellant on August 21st
beginning at about 3:05 p.m.
44. During the evening of
appellant had received a cell phone call from his wife and he
spoke to her on the phone without any interruption or interference.
See Avena, 2004 I.C.J. 128 at ¶ 84 (noting that "Article 1 of
the Vienna Convention on Consular Relations, which defines certain
of the terms used in the Convention, offers no definition of the
phrase 'without delay'").
See Breard, 523 U.S. at 375 (noting that "while we should
give respectful consideration to the interpretation of an
international treaty rendered by an international court with
jurisdiction to interpret such, it has been recognized in
international law that, absent a clear and express statement to
the contrary, the procedural rules of the forum State govern the
implementation of the treaty in that State").
No Thanks, We Already Have Our Own Laws, Legal Affairs, July-Aug.
2004, at 40, 42 (arguing that the use of foreign law as authority
flirts with the "discredited" idea of "universal natural law" and
noting that the citation of foreign case law "is
one more form of judicial fig-leafing, of which we have enough
Avena, 2004 I.C.J. 128 at ¶ 79.
United States v. Rodrigues, 68 F. Supp.2d 178, 184 (E.D.N.Y.
1999) ("There is no prohibition anywhere in the Convention against
continuing to question a foreign national while awaiting consular
see also United States v. Alvarado-Torres, 45 F. Supp. 2d at
United States v. Chaparro-Alcantara, 37 F. Supp.2d 1122,
1126-27 (C.D. Ill. 1999).
Id. at ¶ 85.
Id. at ¶ 86.
Id. ¶ 87. This is not at all surprising as the seminal
American case of
Miranda v. Arizona, 384 U.S. 436 (1966), which required that
an arrestee be warned of his constitutional rights to counsel and
against self-incrimination, was not delivered until three years
after the treaty was drafted. The
Miranda rights are secured under the Fifth and Sixth
Amendments to our own Constitution and are essential to our
criminal justice system, but they are by no means universally
recognized or enforced by other nations.
See Miranda, 384 U.S. at 442-43 (stating that the Fifth
Amendment's right against self-incrimination "had its origin in a
protest against the inquisitorial . . . methods of interrogating
accused persons, which have long obtained in the continental
system") (internal quotations omitted);
see also Gordon Van Kessel,
European Perspectives on the Accused as a Source of Testimonial
Evidence, 100 W. Va. L. Rev. 799, 810 (1998) (noting that
even today European countries typically do not afford a right to
counsel during police questioning); Diane Marie Amann,
Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination
in an International Context, 45 UCLA L. Rev. 1201, 1251-54
(1998) (discussing the recent development of a rising right to
silence in other nations but noting that this right generally
remains less expansive than the Fifth Amendment right in the
United States). There is no reason to think the drafters of the
Vienna Convention had these uniquely American rights in mind or
that they intended these rights to be applied to all nations who
were signatories to the treaty.
58. 2004 I.C.J. 128 at ¶
Consular Notification and Access, Part 3: FAQs.
see also Consular Convention between the United States and
the Soviet Union, 19 U.S.T. 5018 art. 12 (state that notification
shall be given "immediately"), and Protocol (stating that
notification may be given within one to three days).
See 7 Foreign Affairs Manual § 426.2-1 (2004).
See Bell v. Commonwealth, 264 Va. 172, 185-87, 563 S.E.2d
695, 706 (2002),
cert. denied, 537 U.S. 1123 (2003) (consular notification
within 36 hours after defendant taken into custody was made
United States v. Ore-Irawo, 78 F. Supp. 2d 610, 613 (E.D.
Mich. 1999) (stating that "available authorities suggest that the
term 'without delay' [in Article 36] refers to a time-period of
one to three days").
See, e.g., Tex. Code Crim. Proc. art. 11.15 ("The
writ of habeas corpus shall be granted without delay by the judge
or court receiving the petition, unless it be manifest from the
petition itself, or some documents annexed to it, that the party
is entitled to no relief whatever");
id. art. 14.051 ("'fresh
pursuit' means a pursuit without unreasonable delay by a peace
officer of a person the officer reasonably suspects has committed
id, art. 14.06 ("the
person making the arrest or the person having custody of the
person arrested shall take the person arrested or have him taken
without unnecessary delay, but not later than 48 hours after the
person is arrested, before the magistrate who may have ordered the
id. art. 15.08 (officer shall execute telegraphed arrest
warrant "without delay");
id., art. 17.30 (magistrate issuing emergency protective
order shall certify proceedings and deliver documents to clerk of
the proper court "without delay");
id. art. 18.06(a) ("A
peace officer to whom a search warrant is delivered shall execute
it without delay and forthwith return it to the proper magistrate.
It must be executed within three days from the time of its
issuance, and shall be executed within a shorter period if so
directed in the warrant by the magistrate").
66. Tex. Code Crim. Proc.
See McGee v. Estelle, 625 F.2d 1206, 1209 (5th Cir. 1980).
68. 500 U.S. 44 (1991).
Id. at 56.
However, a defendant might be able to show that the delay in a
particular case, although less than 48 hours, was unreasonable.
evaluating whether the delay in a particular case is unreasonable,
however, courts must allow a substantial degree of flexibility.
Courts cannot ignore the often unavoidable delays in transporting
arrested persons from one facility to another, handling late-night
bookings where no magistrate is readily available, obtaining the
presence of an arresting officer who may be busy processing other
suspects or securing the premises of an arrest, and other
Id. at 56-57. -
71. Numerous American
courts have followed the lead of the First Circuit in
Li, and held that "[i]ndividual defendants deprived of
consular notification are not entitled to raise their treatment as
a defense against criminal prosecution." 206 F.3d at 65 (noting,
inter alia, that "the State Department is apparently 'unaware
of any country party to any consular convention with the United
States that remedies failures of notification through its criminal
see also United States v. Bustos de la Pava, 268 F.3d at 165
United States v. Emuegbunam, 268 F.3d at 390-91;
United States v. Chaparro-Alcantara, 226 F.3d at 621;
United States v. Duarte-Acero, 296 F.3d 1277, 1282 (11th Cir.
State v. Prasertphong, 206 Ariz. 70, 83 (Ariz. 2003);
State v. Buenaventura, 660 N.W.2d 38, 46-47 (Iowa 2003);
Garcia v. State, 17 P.3d 994, 996-97 (Nev. 2001);
State v. Martinez-Rodriguez, 33 P.3d 267, 273-74 (N.M. 2001);
State v. Sanchez-Llamas, 108 P.3d 573, 577-78 (Or. 2005).
See Rocha, 16 S.W.3d at 23 (Holland, Meyers, Price & Johnson,
JJ., concurring) (stating that although article 38.23 is a "permissible
enforcement mechanism for violations of Article 36 of the Vienna
Convention," appellant failed to show any causal connection
between that violation and his oral statements given to the police).
United States v. Rodrigues, 68 F. Supp.2d at 184 (collecting
United States v. Villa-Fabela, 882 F.2d 434, 440 (9th
Cir. 1989), the Ninth Circuit set out a more generalized test for
demonstrating actual prejudice for a Vienna Convention violation.
that test, the defendant bears the burden of establishing that
"(1) he did not know of his right; (2) he would have availed
himself of the right had he known of it; and (3) 'there was a
likelihood that the contact would have resulted in assistance to
Id. Under this test, appellant has failed to establish any of
the three required prejudice prongs. Indeed, the record
demonstrates that he did know of his right to contact his
consulate from his prior aggravated robbery plea; he never stated
or suggested that he would have requested the police to inform the
Salvadoran consulate of his detention; and the Salvadoran
consulate did not send an official to testify at appellant's trial
concerning what assistance they could or would provide to their
nationals detained in Texas.
See Rodrigues, 68 F. Supp. 2d at 184.
75. Appellant does not
cite, and we are unable to find, any precedent that holds that a
violation of the Vienna Convention, unconnected to any showing of
prejudice, requires judicial relief in the form of evidence
suppression, retrial, or modification of a sentence.
Breard, 523 U.S. at 377 (stating that "it is extremely
doubtful that the violation should result in the overturning of a
final judgment of conviction without some showing that the
violation had an effect on the trial" and noting that defendant's
trial attorneys "were likely far better able to explain the United
States legal system to him than any consular official would have
United States v. Cardenas, 405 F.3d at 253-55 (defendant
failed to show that he was harmed by any lack of consular
United States v. Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th
Cir. 2000) (defendants not entitled to relief for alleged Vienna
Convention violation when they failed to show how their rights
United States v. Ortiz, 315 F.3d 873, 887 (8th
Cir. 2002) (concluding that the "record contains no evidence that
violations of the Vienna Convention in the case of these
defendants prejudiced them in any way. That violations occurred is
a fact, but it is a disembodied fact. Courts have no authority to
enforce the law, including treaties, in a vacuum, so to speak").
Avena, for example, the ICJ concluded that an appropriate
remedy for a violation of Article 36 is a review to determine
whether that violation "caused actual prejudice to the defendant
in the process of administration of criminal justice."
Avena, 2004 I.C.J. 128 at ¶ 121.
Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002);
Dinkins v. State, 894 S.W.2d 330, 353-54 (Tex. Crim. App.
77. Appellant also argues
on appeal that his statements were involuntary due to his "fear of
police," his "fear of Mr. Cubas," and "the circumstances under
which he was held." Appellant did not advance these arguments when
he requested the 38.23 instruction at trial; thus, we decline to
address them on appeal. TEX.
78. Det. Ortiz testified at
the pretrial hearing on the motion to suppress that he took
appellant into custody at 1:10 a.m., after a check of his criminal
status revealed that he had a "warrant for a Motion to Adjudicate."
79. Defense counsel cross-examined
the officers regarding the terminology they used when they read
appellant his rights. They acknowledged that they used the term
"consejo," a Spanish word for "advice," instead of "advertencia,"
a Spanish word for "warning." Appellant, however, presented no
evidence at trial that the terms used by the officers misled him
in any way. Officer Chavez testified that he generally uses these
terms interchangeably, and that appellant appeared to understand
that he was receiving his legal warnings. Further, a court
interpreter testified at the pretrial hearing on the motion to
suppress that "consejo" is frequently used for the word "warning"
in courtrooms and in the legal system.
80. 530 U.S. 466 (2000).
81. 536 U.S. 584 (2002).
Rayford v. State, 125 S.W.3d 521, 534 (Tex. Crim. App. 2003),
cert. denied, 125 S. Ct. 39 (2004);
Hankins v. State, 132 S.W.3d 380, 386 (Tex. Crim. App.),
cert. denied, 125 S. Ct. 358 (2004).
Rayford, 125 S.W.3d at 534.
84. Appellant alleged a
number of other grounds in his motion for new trial, but on appeal
he provides argument and authority to support only his claim of
cruel and unusual punishment under the Eighth and Fourteenth
85. King v. State,
29 S.W.3d 556, 569 (Tex. Crim. App. 2000).
86. Tex R. App. P. 21.9.
State v. Hight, 907 S.W.2d 845, 846 (Tex. Crim. App. 1995);
State v. Bates, 889 S.W.2d 306, 310 (Tex. Crim. App. 1994).
Faulder v. Johnson, 99 F. Supp. 2d 774, 777 (S.D. Tex. 1999);
White v. Johnson, 79 F.3d 432, 440 n. 2 (5th
R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372,
387-88 (Tex. Crim. App. 1991) (op. on reh'g).
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Montgomery, 810 S.W.2d at 387;
Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999).
92. The trial court
instructed the jury that it could only consider the extraneous
offense "in determining the intent or knowledge of the defendant,
if any, in connection with the offense, if any, alleged against
him in the indictment and for no other purpose."
Brooks v. State, 990 S.W.2d 278, 288 (Tex. Crim. App. 1999);
Raby v. State, 970 S.W.2d 1, 6-7 (Tex. Crim. App. 1998).
Walter Alexander Sorto